The opinion of the court was delivered by: Judge Kosik
Before the court is the counseled habeas corpus petition of Clifford Dale Tinley filed pursuant to 28 U.S.C. § 2254. Tinley is currently an inmate confined at the State Correctional Institution at Coal Township, Pennsylvania. He is currently serving an aggregate term of imprisonment of 13 years, 10 months to 27 years, 8 months. In the petition, Tinley challenges his July 19, 2001 conviction in the York County Court of Common Pleas on various sex offenses committed against his niece and his stepdaughter. He raises four (4) grounds of ineffective assistance of counsel. An Order to Show Cause was issued by the court on May 1, 2007, directing Respondent to answer the allegations in the petition within twenty (20) days. (Doc. 2.) In the Order, Petitioner was also advised that he could file a reply to Respondent's answer within fifteen (15) days from its filing. A response to the petition with attached exhibits, as well as relevant transcripts, were thereafter filed on May 16, 2007. No traverse has been submitted. The petition is ripe for consideration and, for the reasons that follow, will be denied.
On August 2, 2000, two separate criminal complaints were filed against Petitioner accusing him of sexually abusing both his niece, J.T. and his stepdaughter, B.M. According to the complaints, Petitioner began abusing J.T. in January of 1996 when she was 11 years old, and continued until July of 2000. The abuse of B.M. began in January of 1990 when she was 10 years old, and continued until December of 1999, when she was 19 years old. The allegations of sexual abuse contained in the complaints included vaginal intercourse, digital penetration, oral intercourse, various acts of masturbation, the insertion of objects into J.T.'s vagina, general sexual touching of B.M's breasts, buttocks and vagina, and exposing B.M. to pornographic movies. (Doc. 8, Ex. 4, 4/15/05 Super. Ct. Op. at 2-3.)*fn1
The Commonwealth filed a notice to consolidate the cases, and a jury trial on all charges was conducted in July of 2001. On July 19, 2001, Petitioner was found guilty on the following charges with regard to J.T.: rape, involuntary deviate sexual intercourse ("IDSI"), attempted IDSI, statutory sexual assault, sexual assault, aggravated indecent sexual assault, indecent assault, and corruption of minors. With respect to B.M., Petitioner was convicted of sexual assault, aggravated indecent assault, indecent assault, and corruption of minors. He was acquitted on the rape and IDSI charges with respect to B.M.
On January 31, 2002, Petitioner was sentenced to an aggregate prison term of 13 years, 10 months to 27 years, 8 months. This judgment of sentence was affirmed on direct appeal on September 22, 2003. (Doc. 8, Ex. 1, Commonwealth v. Tinley, 455 MDA 2002.) A petition for relief filed pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C. S. §§ 9541, et seq. was thereafter timely filed on January 2, 2004. (Id., Ex. 2.) Following a hearing, the PCRA petition was denied by the trial court on July 1, 2004. (Id., PCRA Hr'g Tr., Ex. 2.) The PCRA denial was affirmed by the Pennsylvania Superior Court on April 15, 2005. (Id., Ex. 4, Commonwealth v. Tinley, 1247 MDA 2004.) The Pennsylvania Supreme Court denied allocatur on May 3, 2006. (Id., Ex. 6.) The instant petition for writ of habeas corpus was thereafter filed on April 30, 2007.
Petitioner raises four grounds of relief in the petition. Each sets forth alleged instances of ineffective assistance of trial counsel. In the first ground, he claims that trial counsel failed to object to alleged instances of hearsay testimony on numerous occasions. He next maintains that counsel was ineffective for failing to object to the testimony of the Commonwealth's expert, Debra Holbrook, R.N. The third ineffective assistance ground focuses on counsel's failure to object to the consolidation of the two cases. Finally, Petitioner contends that counsel was ineffective in failing to advise him of a plea bargain offered at the time the jury went out to deliberate.
Section 2254 of Title 28, United States Code, provides that the district court "shall entertain an application or a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a). Properly presented, exhausted claims for relief that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(2). A state court decision will be an "unreasonable application of" Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Williams v. Taylor, 529 U.S. 362, 408-409 (2000). However, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A habeas petitioner must rebut this presumption by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000).
A. Procedurally Defaulted Claim
One of the four ineffectiveness of counsel claims raised by Petitioner, the failure of counsel to advise of a plea offer, is procedurally defaulted without excuse. Habeas corpus relief cannot be granted unless available state court remedies on the federal constitutional claims have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). This statutory provision has been interpreted to require the federal habeas petitioner to present both the facts and legal theory associated with each claim through "one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999); Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). To satisfy this requirement, a petitioner must demonstrate that the claim raised was fairly presented to the state's highest court, either on direct appeal or in a state post-conviction proceeding. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in PCRA proceedings. Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). In addition, the state court must be put on notice that a federal claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001).
The exhaustion requirement is not a mere formality. It serves the interests of comity between federal and state systems by allowing the state an initial opportunity to determine and correct any violation of a prisoner's ...